Monday, November 20, 2017

Text and History Fed Soc Style

By Eric Segall

Professors Randy Barnett and Akhil Amar had a fascinating, informative and entertaining debate at the Federalist Society Convention on Saturday. The question was "Resolved: Lochner Still Crazy after all These Years." I recommend you watch the entire debate, but I want to focus on what Barnett said at the very end. In response to a question concerning how far the legal academy has come in accepting the idea that maybe Lochner wasn't all that bad, Barnett attributed the development to the Federalist Society's thirty-year commitment to pushing judges to adopt a textualist-originalist approach to constitutional interpretation. Barnett's explanation echoed the overriding theme of the conference, which was that finally textualist-originalist judges were being appointed to the bench. The White House counsel said at the convention, to everyone's delight, that "The Trump Administration's philosophy on judging can be summarized in two words: "Originalism and Textualism.'"

There are a number of ironies in this Federalist Society call for textualist-originalist judging. First, Barnett using Lochner to support his textualism/originalism thesis is interesting given that there is barely a word about text or history in the entire majority opinion. Moreover, as my forthcoming book "Originalism as Faith" will argue, the founding fathers either believed in the "clear error" version of judicial review, or maybe just a strongly deferential system. There is no plausible argument they believed in an aggressive, Lochner-style form of judicial review. And of course, judicial review is nowhere mentioned in the Constitution. If Barnett and Fed Soc want to defend Lochner's version of judicial review, it will have to be through a living constitutionalism type argument not a textualist-originalist one.

Second, focusing on text gets judges almost nowhere when resolving constitutional cases, just like it was irrelevant to the majority in Lochner. Most constitutional litigation arises under clauses that are hopelessly vague and general such as the First Amendment's speech and religion clauses, the Fourth, Fifth and Sixth Amendment's criminal procedure rules, which are mostly unclear, and the Fourteenth Amendment's equal protection and due process clauses. All judges are textualists in the sense that if the text is clear, the judge will follow it, but that rarely if ever happens in constitutional law.

Maybe what the Federalist Society is devoted to is the idea that judges shouldn't make up rights and principles that aren't enumerated in the Constitution. But that can't be right for two reasons. First, there is considerable support these days among Federalist Society members for the idea that the Privileges or Immunities Clause (and maybe the Ninth Amendment) protect unenumerated rights. Barnett has worked hard to make both of those ideas mainstream among Federalist Society followers. The main focus of the Society seems to have switched from anti-Roe, anti-judicial activism to the thesis that the Justices aren't doing enough to protect the right kind of (i.e., economic) rights, enumerated or not.

Second, although I have no proof, my strong guess is that most of the people clapping wildly for textualist judges at the convention agree with the equal state sovereignty principle the Court espoused in Shelby County, the anti-commandeering principle of Printz v. United States, the color-blind principle advocated so long by the conservatives on the Court in numerous affirmative action cases, and the sovereign immunity principle applicable to suits against states by their own citizens that the Court concocted in Hans and reaffirmed in Seminole Tribe. None of those important constitutional limitations on governmental discretion can be found anywhere in the Constitution's text.

As far as the originalist part of textualist-originalist judges is concerned, Barnett, and most Federalist Society members, recognize that in actual, real-life constitutional litigation, originalist sources will not drive results. The constitutional interpretation/constitutional construction framework championed so strongly by Barnett, with Larry Solum and Keith Whittington, among many others, recognizes that in most cases the Justices' "underlying normative commitments" will drive decisions. In other words, the history behind the adoption of most constitutional provisions will be too contested or unclear to obviate the need for constitutional construction based on the judges' [modern] values.

So what does it mean for lawyers, law professors and judges to toast many times over, as happened at the convention, judges who are textualists-originalists? I really don't know, but my guess is that it has something to do with the "But Gorsuch" stress balls that were handed out during the convention (I'm not making that up). By that I mean, what the Federalist Society means by "textualist-originalist" judges are judges, like Gorsuch, who were either members of the Federalist Society, or at least in general accord with the Society's principles (Gorsuch spoke at the convention Friday night). Chief Justice Roberts, Justice Alito, and the late Justice Scalia, of course, fall in the same category.  Interestingly, all three voted for the four non-textual, and I might add non-historical, principles I highlighted above, and dollars to doughnuts, so will Justice Gorsuch.

7 comments:

Shag from Brookline said...

Back in 1954 when I finished up law school, there was no Federalist Society. There had been no discussions of originalism in my ConLaw course in the Fall of 1952, with much of the time focusing on the Commerce Clause and little time on individual rights. At some point during the course of my law practice, I became aware of the Federalist Society but was not aware of its political inroads. It wasn't until I went into semi-retirement late in 1998 that I focused on the originalism movement and the movement that led to the establishment of the Federalist Society. The Internet was a valuable source of information on these movements. I learned that the Federalist Society was inspired by libertarians in legal academia, both faculties and students.

What's in a name, like the Federalist Society? Does it conjure up the Federalists that brought about the 1787 Constitution via the Constitutional Convention? Was the name inspired by the Federalist Papers and their three authors pushing for the ratification of the 1787 Constitution? These Federalists back then were opposed by the Anti-Federalists, with the latter showing their opposition during the ratification process of the 1787 Constitution. These Federalists had expressed the need for a significant central government, a failing of the Articles of Confederation. The Anti-Federalists resisted a strong central government. But the Anti-Federalists were not successful and the 1787 Constitution was ratified.

Was the 1970s movement of what became the Federalist Society more in line with the Anti-Federalists of yore, in response to the activism of the Warren Court? Was the movement focused on States Rights? If so, perhaps a more descriptive name for the organization would have been the Anti-Federalist Society. But that might have been too much of a negative. Perhaps the movement was focused on federalism, in which case The Federalism Society might have been more descriptive of the movement. But it was called the Federalist Society, perhaps better displaying its libertarian membership.

Eric's closing paragraph starts with this:

"So what does it mean for lawyers, law professors and judges to toast many times over, as happened at the convention, judges who are textualists-originalists? I really don't know, but my guess is that it has something to do with the 'But Gorsuch' stress balls that were handed out during the convention (I'm not making that up)."

Does this mean that in its 30 years the Federalist Society has finally grown a pair? Is the 1787 Constitution truly libertarian? If so, would this give new meaning to "We, the People"? [Yes, these are rhetorical questions.]

John Barron said...

ES: "the founding fathers either believed in the "clear error" version of judicial review, or maybe just a strongly deferential system."

This is COTUS, not Fifty Shades of Grey. The level of review had to be robust enough to protect individual rights, but not so strong as to emasculate the legislature. Again, the originalist is focused on ensuring that COTUS do what it was designed to do. As St. George Tucker put it in the state-law precursor to Marbury:

If the principles of our government have established the judiciary as a barrier against the possible usurpation, or abuse of power in the other departments, how easily may that principle be evaded by converting our courts into legislative, instead of constitutional tribunals?

To preserve this principle in its full vigour, it is necessary that the constitutional courts should all be restrained within those limits which the constitution itself seems to have assigned to them respectively.


Kamper v. Hawkins, 3 Va. 19, 88 (Va. 1793)(opinion of Tucker, J., seriatim). Judge Tyler also apprehended the danger, observing that "I will not in an extra-judicial manner assume the right to negative a law, for this would be as dangerous as the example before us." Id. at 61 (opinion of Tyler, J., seriatim).

Lochner was a bridge too far, in the sense that it would be per se unreasonable for the government to not impose restrictions on the liberty of contract sufficient to protect its valid interests. For instance, we don't allow brothers and sisters to marry, due to the high probability that they will produce intellectually feeble offspring that would become wards of the State.

Barnett's mantra--that judges should be more active, but not more activist--should be viewed through this lens.

John Barron said...

ES: "And of course, judicial review is nowhere mentioned in the Constitution."

SMH. "[W]e must never forget that it is a constitution we are expounding."

To me, this is the most infuriating part of LC critiques of originalism: through risible assumptions, they erect a caricature--and then, proceed to ravage their straw men. As a practical matter, if Parliament were supreme, all the judiciary would do is referee more mundane disputes between subjects. But as the Constitution is supreme, art. VI, cl. 2, some body must be able to restrain the legislature. Ergo, judicial review is presumed, and incorporated into the system. [This was true in Britain, where Lord Coke persuaded the King to abide by Court pronouncements restricting his authority.]

Again, am I the only one here who read Marbury in LS?


On a more conceptual level, I am hard-pressed to find a great deal of divergence between ES's LC and the most modern iteration of originalism. ES has said that Plessy was wrong because the Court went outside the text; if that is the case, then a textual originalist would have reached the Harlan dissent. If anything, Plessy is an example of LS at work: timorous judges thought there was no way that the people would accept Harlan's view, and effectively punted.

To me, the salient difference is in what words mean, and the mechanism by which LC fans seek to impose a 21st century definition on 18th century words is opaque, at best. Say, for example, that the word "gay" was in the original COTUS text. If we imposed the new meaning, we would be amending COTUS sub rosa. That makes no bloody sense.


ES: "Most constitutional litigation arises under clauses that are hopelessly vague and general such as the First Amendment's speech and religion clauses, the Fourth, Fifth and Sixth Amendment's criminal procedure rules, which are mostly unclear, and the Fourteenth Amendment's equal protection and due process clauses."

The Framers wrote COTUS with the reasonable expectation that case law would fill in some of the blanks. For example, whereas the words "cruel" and "unusual" were fixed in 1791, what punishments qualified as "cruel" might well have been expected to evolve over time. Ergo, if you were hung up on labels, you could contend that some aspects of the LC were "baked into" what is still an originalist document. But that alone does not invalidate the principles laid down in the original document./2

John Barron said...

2/A representative example of this is the Good Behaviour Clause of Article III. As has been argued earlier, the words have a precise and functional meaning. In effect, based on a quarter-century of British (and Colonial) precedent, it was designed as a restraint on judges, effectively forcing them to do justice to all suitors in their courts. As CJ Marshall observed, "[w]e have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution." If a judge refused to hear your case, you had a right to remove him from the bench pursuant to a writ of scire facias.

"It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it." Marbury at 174. But our hopelessly-corrupt LC judges and justices--especially, Scalia--treat it as an inkblot. This is the damage the LC has done to COTUS.


ES: "All judges are textualists in the sense that if the text is clear, the judge will follow it"

Judges will follow the text of COTUS when it takes them where they wanted to go in the first place ... but in the real world, the entire U.S. Reports is no match for a willful and headstrong judge:

"With disarming candor Justice John Marshal Harlan (grandfather of the present Justice Harlan) told a class of law students: 'I want to say to you young gentlemen that if we don't like an act of Congress, we don't have much trouble to find grounds for declaring it unconstitutional.'"

Alphaeus Thomas Mason, The Supreme Court from Taft to Warren vii (La. St. U. Press, 2d ed. 1968) (emphasis added) [Harlan was described by Amar as a "hero" in the debate].

This is the most florid example of the LC at work I can think of, and the clearest way to draw a distinction between the theories. To the originalist, a decision that cannot be squared with COTUS is void ab initio. Under the jackbooted heels of the LC, the law is whatever Reichchancellor Roberts and his gang say it is.

We no longer have a Constitution, save for in name only. We are ruled by majority vote of a band of Elena Kagan's Platonic Guardians.


What the FedSoc stands for is hard to state dogmatically, because it is a society that holds a range of views. ES can run this by Randy, but I'm pretty sure he is in Erwin Chemerinsky's camp when it comes to Alden/Seminole. There are still some old-school Burkeans around, but it appears that the libertarians have largely won the day there.

The FedSoc is more accurately described as the "We HATE Roe" Society, and ironically, the only way they can overturn Roe is to embrace the LC. That historical evidence the LC types hate establishes with clarity that rights are retained unless and until they are ceded, and that there is no distinction between enumerated and unenumerated rights. Moreover, there is no warrant for the judge-made distinction between "fundamental" and "non-fundamental" rights.

LC opponents of Roe can get to their goal by simply declaring that a fetus is a person for purposes of the 5/14Am. Think about it.

John Barron said...

ES: "Second, although I have no proof, my strong guess is that most of the people clapping wildly for textualist judges at the convention agree with the equal state sovereignty principle..."

While I wouldn't say "most," I would agree with "many." They are religious zealots, searching desperately for a defensible rationale for overturning Roe. In a blog post entitled "How Two Governments Protect Liberty Better than One," prominent originalist John McGinnis writes:

"[F]ollowing constitutional federalism today also reflects a realistic and constrained vision of politics, simply because it follows the constitution as written. Substituting some other kind of federalism as advocated by the new school of “national federalism” is an updating of the Constitution and constitutional updating is the essence of the unconstrained vision, because it puts trust in a small group of unrepresentative judges to do the changing.

An important part of the enforcing the Constitution as written is not permitting the federal judiciary to create new rights to restrain ability of the states to make their own trade offs between license and liberty. Abortion may be a moral problem, but the legal problem of Roe v. Wade is its assumption of a federal judiciary unconstrained by the Constitution and thus a perpetual engine of national consolidation. Any theory that permits the federal judiciary to create new rights against the states cannot be a theory that respects constitutional federalism."

The notion of judges "creating" rights is anathema to the originalist. Moreover, this strain of FedSoc'ers wants to reduce the 14Am to an inkblot, because it is the only way they can get to "States' Rights." Never mind that that pesky Constitution gets in the way....

Outcome-based jurisprudence is not the sole province of the Left.

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